Hundreds of businesses now owed $5.6 million by Collier County will get payment as early as next week

Court files show Brock fought to cancel court hearing on technicality and delay payments to vendors

By Gina Edwards

Naples City Desk

Hundreds of businesses now owed a total of $5.6 million by Collier County could get payment as early as next week.

The relief for vendors comes under an agreement reached in response to County Manager Leo Och’s emergency motion that asked a judge to force Clerk of Courts Dwight Brock to pay the county’s outstanding bills.

The procedure agreed to by Ochs and Brock in an order signed by Judge James R. Shenko on Thursday requires Brock to follow the system that’s been in place since at least 2007, according to a sworn affidavit by the county’s Purchasing Director. Brock will submit a report of disbursements and commissioners will vote to approve them at a special meeting on Monday.

“We are extremely pleased that Judge Shenko approved this interim agreement,” said County Manager Leo Ochs in a statement. “Many of our vendors are small business people who rely on the county’s business and timely payment to survive. They should not have to suffer until this lawsuit is resolved.”

Five media outlets showed up to an empty courtroom for the scheduled hearing before Judge Shenko on Thursday at 1:30 p.m. and learned that attorneys for Ochs and Brock had agreed to a deal that was signed 44 minutes before the hearing.

In the deal, Brock maintains the status quo and pays bills as he’s done in the past and stands down from refusing to pay bills until the court can determine if his lawsuit that challenges the county’s purchasing ordinance is legitimate.  

Online court files show a motion by Brock’s attorneys — clocked in and time stamped in at 3:01 p.m. on Thursday and after the judge’s order was signed — in which Brock had sought to block holding the emergency hearing on a procedural technicality. Brock’s attorneys also sought to delay the hearing saying he needed time to question Ochs in a sworn deposition first.

Brock did not respond to an interview request or provide a statement to Naples City Desk.

Hundreds of businesses, many of them local small businesses, have been effected by Brock’s decision to stop payment. Collier County government spending pumps an estimated $100 million a year into Collier’s local economy. The county’s ambulance parts supplier cut off the county’s account for non-payment in recent weeks. Paramedic staff voiced concerns that lives could be jeopardized if the vendor cut off all supplies. A meal program for seniors faced jeopardy because of Brock’s refusal to pay vendors.

“What’s important is our vendors will be paid,” Commissioner Penny Taylor, who said she supported Brock’s lawsuit, told reporters outside the courtroom.

Commissioner Hiller said Brock backed off.  

“The parties agreed, the Clerk conceded and he has agreed to maintain the status quo. Essentially what he has been doing for the past 15 years he will continue to do,” Collier Commissioner Georgia Hiller said.

The lawsuit will proceed, but under the agreement innocent bystander vendors won’t be caught in the middle.

Brock, in the lawsuit he filed in April, says the county’s purchasing ordinance is illegal because it delegates spending decisions on smaller purchases and contracts under $50,000 to Ochs and the Purchasing Director. Brock says every spending item must be approved by commissioners in advance.

Virtually every county in Florida agrees with Ochs. Sixty five of 67 counties delegate spending decisions on smaller contracts to a manager or administrator.

Of the counties with similar forms of government to Collier, called non-charter counties, all but one allow the county manager to make purchases under a certain dollar threshold, according to a sworn statement by Tim Durham, the county’s Executive Manager for business operations. Most of the thresholds range between $25,000 and $50,000 for smaller counties, but larger counties including those with similar population sizes to Collier, have much higher limits. Neighboring Lee County does not bring any spending items before Commissioners if they are under $100,000, for example.

Just how much Brock’s lawsuit against Ochs will cost taxpayers is uncertain, but the legal costs are climbing.

Brock added three more attorneys to his legal team this week from the law firm of Ackerman, Link & Sartory. Brock has five attorneys on the case altogether including Anthony Pires, of Woodward, Pires & Lombardo and in-house counsel Marni Scuderi.

Ochs has three attorneys from the law firm of Weiss, Serota, Helfman, Cole & Bierman: Jamie Cole, John Quick and Adam Schwartzbaum; Purchasing Director Joanne Markiewicz is represented by Andrew Reiss and Clay Brooker of Cheffy Passidomo.  Brock sued county employees Ochs and Markiewicz in their individual capacities.

A County Commission majority voted to have the Board of County Commissioners intervene as a party to force Brock to pay vendors. Three more attorneys from Nabors Giblin & Nickerson, Gregory Stewart, Carly Schrader and Kerry Parsons, have asked to join the case on behalf of the county.   

In response to a question, Commissioner Hiller said she didn’t know if vendors could be entitled to late fees under Florida’s local government prompt payment act. The state law allows vendors to be paid interest fees if payments are held up by local government more than 45 days.  

“The other question these vendors should really have is whether or not the Clerk had the legal right to delay payment for the reasons he’s alleging,” Hiller said. “They may have a claim against him for improperly withholding payment and not paying as quickly as the prompt payment act requires him to pay.”

A builder, an air conditioning company and an elevator repair company, all locally based, have told Collier County they would no longer seek smaller contract work, like work done to provide emergency repairs and maintenance, because they didn’t want to risk performing work and paying for materials with long waits for payments and reimbursements or flat-out refusals to pay by Brock’s Office, court filings say.

During Commissioners’ summer break, Ochs will sign off on all spending as valid and be ratified when the board returns, following past practice.

Emails now part of the court file, show Brock’s pressure tactics on Ochs.  

In mid-May, Brock sent a letter to 1,800 county vendors, even those not affected by the lawsuit, threatening not to pay. In early June, attorneys for Ochs had pressed Brock to agree to the status quo and continue paying. Ochs’ lawyers asked Brock’s attorneys to set a time so they could question Brock, absent Brock’s agreement to preserve the status quo, emails in court filings show.

Subsequently, Brock stopped paying small contract vendors in mid-June although he hadn’t won his lawsuit challenging the county’s purchasing ordinance on the merits. After stopping payments, Brock’s attorneys then told Ochs’ lawyers that Brock wouldn’t be available for questioning until August, emails in court filings show.

The next day, Commissioners Tim Nance, Donna Fiala and Hiller voted for the county emergency action to fore Brock to pay the small vendors. Commissioners Taylor and Henning opposed it. 

“It is with deep distress that we watch the continuing conflict between the Collier County Clerk of Courts and Commission,” East Naples Civic Association President Marci Seamples wrote.

“In this latest round, we have a third party caught in the crossfire: vendors that are not receiving payment for goods and services delivered. The situation brought upon these business owners, through no fault of their own, is more than lamentable. We elect our leaders to serve our community and her citizens – not to harm them, and certainly not to use them as pawns in a political feud.”

Date: July 18, 2015

Story Reporting by Gina Edwards for Naples City Desk

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